Citation Nr: 0820646
Decision Date: 06/24/08 Archive Date: 06/30/08
DOCKET NO. 06-15 674 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for myopia and
presbyopia, for the purposes of accrued benefits.
2. Entitlement to service connection for intestinal
ankylostomiasis, for the purposes of accrued benefits.
3. Entitlement to service connection for seborrheic
dermatitis, for the purposes of accrued benefits.
4. Whether new and material evidence has been submitted to
reopen a claim for service connection for pulmonary
tuberculosis, for the purposes of accrued benefits.
5. Whether new and material evidence has been submitted to
reopen a claim for service connection for malaria, for the
purposes of accrued benefits.
6. Whether new and material evidence has been submitted to
reopen a claim for service connection for schizophrenia, for
the purposes of accrued benefits.
ATTORNEY FOR THE BOARD
A.G. Alderman, Associate Counsel
INTRODUCTION
The decedent served with the Philippine Guerilla and
Combination Service from May 1945 to May 1946 and with the
Special Philippine Scouts from May 1946 to April 1949. He
died in January 2004. The appellant is the adult child of
the veteran.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 2005 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).
Although the October 2005 rating decision and March 2006
Statement of the Case reflect that the RO addressed the
threshold matter of new and material evidence, the Board
itself must make a determination as to whether evidence is
new and material before addressing the merits of a claim.
Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C.A. §§
5108, 7104(b)). Thus, the question as to whether the
evidence before the Board is new and material will be
discussed below.
FINDINGS OF FACT
1. The veteran served with the Philippine Guerilla and
Combination Service from May 1945 to May 1946 and with the
Special Philippine Scouts from May 1946 to April 1949.
2. At the time of the veteran's death, he had no adjudicated
service-connected disabilities but had claims for VA benefits
pending.
3. A claim for accrued benefits was filed within one year of
the veteran's death.
4. Myopia and presbyopia are congenital or developmental
defects and are not subject to service connection for VA
purposes.
5. The evidence fails to show a nexus between the veteran's
intestinal ankylostomiasis and seborrheic dermatitis and his
military service.
6. No new and material evidence has been submitted to reopen
the claims for service connection for pulmonary tuberculosis,
malaria, or schizophrenia.
CONCLUSIONS OF LAW
1. Service connection for vision loss due to refractive
error, including presbyopia and myopia, is precluded by the
regulations. 38 C.F.R. § 3.303(c) (2007).
2. Intestinal ankylostomiasis and seborrheic dermatitis were
not incurred in or aggravated by service. 38 U.S.C.A. §
1110, 1131 (West Supp. 2005); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2007).
3. New and material evidence has not been submitted since
the RO's August 1952 rating decision; thus, the service
connection claims for pulmonary tuberculosis (PTB), malaria,
and schizophrenia, for the purpose of accrued benefits, are
not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp.
2005); 38 C.F.R. § 3.156 (2007).
4. The basic legal criteria for establishing entitlement to
accrued benefits are not met. 38 U.S.C.A. § 5121 (West
2002); 38 C.F.R. § 3.1000 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
The law governing claims for accrued benefits provides that,
upon the death of a veteran, his lawful surviving spouse may
be paid periodic monetary benefits to which he was entitled
at the time of his death, and which were due and unpaid,
based on existing rating decisions or other evidence that was
on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. §
3.1000.
The appellant is not the veteran's surviving spouse, child,
or dependent parent, and he therefore does not meet the
criteria set out in 38 C.F.R. § 3.1000(a)(1)-(3) as an
eligible survivor. However, accrued benefits may be paid as
may be deemed necessary to reimburse the person who bore the
expenses of the last sickness and burial. 38 U.S.C.A. §
5121(a)(5); 38 C.F.R. § 3.1000(a)(4).
Although the appellant's claim for accrued benefits is
separate from any claim that the veteran filed prior to his
death, an accrued benefits claim is "derivative of" that
claim. By statute the appellant takes the veteran's claim as
it stood on the date of his death. Zevalkink v. Brown, 102
F.3d 1236, 1242 (Fed. Cir. 1996). For a claimant to prevail
in an accrued benefits claim, the record must show the
following: (1) The appellant has standing to file a claim for
accrued benefits (see 38 U.S.C.A. § 5121; 38 C.F.R. §
3.1000); (2) the service person had a claim pending at the
time of his death (see 38 U.S.C.A. §§ 5101(a), 5121(a); Jones
v. West, 136 F.3d 1299 (Fed. Cir. 1998); (3) the service
person would have prevailed on his claim if he had not died
(Id.); and (4) the claim for accrued benefits was filed
within one year of the service person's death (See 38
U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c)).
In this case, at the time of the veteran's death in January
2004, service connection was not in effect for any
disabilities; however, pending at the time of the veteran's
death were claims for service connection for myopia,
presbyopia, intestinal ankylostomiasis, and seborrheic
dermatitis, as well as claims to reopen claims for service
connection for PTB, malaria, and schizophrenia.
The appellant, the veteran's adult child, filed an
application for accrued benefits within one year after the
veteran's date of death.
Service connection will be granted if it is shown that the
veteran suffers from a disability resulting from personal
injury suffered or disease contracted in the line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in the line of duty, during active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Disorders diagnosed after discharge will still be service
connected if all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34
F.3d 1039, 1043 (Fed. Cir. 1994).
In the absence of proof of a present disability there can be
no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service. Watson v. Brown, 4 Vet. App. 309, 314
(1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000). To establish service connection, there must be:
(1) a medical diagnosis of a current disability; (2) medical
or, in certain cases, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between an in-service injury or disease
and the current disability. Hickson v. West, 12 Vet. App.
247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd 78 F.3d 604 (Fed. Cir. 1996).
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124,
127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492
(1992) (a layperson without the appropriate medical training
and expertise is not competent to provide a probative opinion
on a medical matter, to include a diagnosis of a specific
disability and a determination of the origins of a specific
disorder).
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions. Competent medical evidence may also mean
statements conveying sound medical principles found in
medical treatises. It also includes statements contained in
authoritative writings, such as medical and scientific
articles and research reports or analyses. 38 C.F.R. §
3.159(a)(1). Competent lay evidence means any evidence not
requiring that the proponent have specialize d education,
training, or experience. Lay evidence is competent if it is
provided by a person who has knowledge of facts or
circumstances and conveys matters that can be observed and
described by a lay person. 38 C.F.R. § 3.159(a)(2).
A disorder will be service connected if the evidence of
record, regardless of its date, shows that the veteran had a
chronic disorder in service or during an applicable
presumption period, and that the veteran still has the same
disorder. With chronic disease shown as such in service (or
within the presumptive period under § 3.307) so as to permit
a finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b). A
determination as to whether medical evidence is needed to
demonstrate that a veteran presently has the same condition
he had in service or during a presumption period, or whether
lay evidence will suffice, depends on the nature of the
veteran's present condition (e.g., whether the veteran's
present condition is of a type that requires medical
expertise to identify it as the same condition as that in
service or during a presumption period, or whether it can be
so identified by lay observation). Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997).
If the disorder is not chronic, it will still be service
connected if the disorder is observed in service or an
applicable presumptive period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present disorder to that symptomatology. Continuity of
symptomatology is required only where the condition noted
during service (or in the presumptive period) is not, in
fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. Again, whether
medical evidence or lay evidence is sufficient to relate the
current disorder to the in-service symptomatology depends on
the nature of the disorder in question. Savage, 10 Vet. App.
at 497.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination, the
benefit of the doubt is afforded the claimant.
A. Presbyopia and Myopia
For purposes of entitlement to benefits, the law provides
that refractive errors of the eyes are congenital or
developmental defects and not disease or injury within the
meaning of applicable legislation. 38 C.F.R. §§ 3.303(c),
4.9. In the absence of superimposed disease or injury,
service connection may not be allowed for refractive error of
the eyes, including myopia, presbyopia, and astigmatism, even
if visual acuity decreased in service, as this is not a
disease or injury within the meaning of applicable
legislation relating to service connection. 38 C.F.R.
§§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit
service connection for refractory errors of the eyes unless
such defect was subjected to a superimposed disease or injury
which created additional disability. See VAOPGCPREC 82-90
(July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30,
1990) (service connection may not be granted for defects of
congenital, developmental or familial origin, unless the
defect was subject to a superimposed disease or injury).
The Board has reviewed service medical records and medical
records subsequent to service; however, none of the records
indicate that the veteran's myopia and presbyopia were
related to, caused by, or a result of a superimposed disease
or injury.
The veteran's myopia and presbyopia are congenital or
developmental defects and, without evidence of a superimposed
disease or injury during service, the veteran is not entitled
to service connection based on in-service incurrence or
aggravation. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-
90.
B. Intestinal ankylostomiasis and seborrheic dermatitis
The veteran's service medical records do not show that the
veteran was diagnosed with or treated for intestinal
ankylostomiasis or seborrheic dermatitis during service.
Medical evidence from the Veteran Memorial Medical Center
indicates that the veteran was diagnosed with and treated in
1970 for seborrheic dermatitis and in 1974 for intestinal
ankylostomiasis, many years after service. The evidence did
not indicate or include a medical opinion that the
disabilities were related to or caused by the veteran's
active service with the Philippine Guerilla and Combination
Service or the Special Philippine Scouts, nor was there any
indication of a connection between the disorders and service.
Since the evidence submitted does not indicate that either
intestinal ankylostomiasis or seborrheic dermatitis were
related to or caused by service, it weighs against the claim
for service connection for purposes of accrued benefits.
Also highly probative against the claims is the fact that the
disabilities were diagnosed more than 30 years after service
and were diagnosed and treated during only the noted time
period. Records fail to show that the veteran was treated
subsequent to 1970 for seborrheic or subsequent to 1974 for
intestinal ankylostomiasis. This lengthy period without
complaint or treatment is evidence that the veteran did not
suffer symptoms of the disabilities since service. See
Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
Therefore, because the evidence does not show that the
veteran was treated during service for the disabilities and
does not provide a nexus opinions or other evidence linking
the disabilities to the veteran's service, the Board cannot
find that service connection is warranted for either
intestinal ankylostomiasis or seborrheic dermatitis for the
purpose of accrued benefits.
II. New and Material Evidence
The veteran's original claims for service connection for
malaria and schizophrenia were denied by the RO in an August
1952 rating decision on the basis that the veteran's service
records were negative for the disabilities and such
disabilities were not shown by the evidence of record or were
not diagnosed within one year of discharge from service. As
the veteran did not appeal, thus the decision is final and
not subject to revision on the same factual basis. 38
U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.
The original claim for service connection for PTB was denied
by the RO in a January 1974 rating decision on the basis that
service medical records were negative for treatment and that
PTB was not diagnosed within the regulatory period following
discharge from service to a degree of at least 10 percent.
The veteran appealed and the decision was affirmed by the
Board in June 1975. The veteran did not appeal. Thus, the
decision is final and not subject to revision on the same
factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, VA must reopen
the claim and review its former disposition. 38 U.S.C.A. §
5108. New evidence means existing evidence not previously
submitted to agency decision makers. Material evidence means
existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a). In determining whether evidence is "new
and material," the credibility of the new evidence must be
presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence of record at the time of the 1952 RO decision
and 1975 Board decision failed to show that the veteran was
treated for the conditions while in service or within the
presumptive period after separation from service.
Since then, the veteran had submitted evidence consisting of
records showing treatment of the claimed conditions many
years after discharge from military service. However, the
evidence received fails to show that the veteran was treated
in service or within three years of separation for PTB, or
within one year for malaria and schizophrenia.
Since the evidence submitted since the prior final decision
continues to show only that the veteran suffered from the
claimed conditions many years after service and fails to show
that the conditions manifested during service or within the
presumptive time periods, the evidence is cumulative and not
considered new. No evidence has been provided showing that
these conditions were related to any disease or injury during
military service.
Accordingly, as no new and material evidence has been
provided the claims are not reopened and the August 1952
rating decision and 1975 Board decision remain final for
purposes of accrued benefits. The appeal is denied.
Based on the foregoing, since the veteran was not entitled to
service connection for any disability at the time of his
death, the Board finds that no benefits have accrued.
Accordingly, the appellant's claim for entitlement to accrued
benefits must be denied.
IV. The Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of
original jurisdiction, or regional office (RO). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the duty to notify was not satisfied prior to the
initial unfavorable decision on the claim by the RO. Under
such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the RO's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the RO) see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial RO decision by way of a letter sent
to the appellant in April 2005 that fully addressed all four
notice elements. The letter informed the appellant of what
evidence was required to substantiate the claims and of the
appellant's and VA's respective duties for obtaining
evidence. The appellant was also asked to submit evidence
and/or information in his possession to the RO. Although the
notice letter was not sent before the initial RO decision in
this matter, the Board finds that this error was not
prejudicial to the appellant because the actions taken by VA
after providing the notice have essentially cured the error
in the timing of notice. Not only has the appellant been
afforded a meaningful opportunity to participate effectively
in the processing of her or his claim and given ample time to
respond, but the RO also readjudicated the case by way of a
supplemental statement of the case issued in August 2005
after the notice was provided. For these reasons, it is not
prejudicial to the appellant for the Board to proceed to
finally decide this appeal as the timing error did not affect
the essential fairness of the adjudication.
The Board notes that the appellant was not informed that
disability ratings and effective dates would be assigned if
his claims were granted. However, since the appellant's
claims are being denied, no disability ratings or effective
dates will be assigned. Therefore there can be no
possibility of any prejudice to the appellant. See Dingess
v. Nicholson, 19 Vet. App. 473 (2006).
With respect to the duty to assist, the RO has secured the
veteran's service medical records and private medical
records. As there is no other indication or allegation that
relevant evidence remains outstanding, the Board finds that
the duty to assist has been met. 38 U.S.C.A. § 5103A.
The Board notes that an etiological opinion has not been
obtained regarding the service connection issue. However,
the Board finds that the evidence, discussed above, for
example, which indicates that the veteran did not receive
treatment for any of the claims during service and was not
treated until many years after service, warrants the
conclusion that a remand for an opinion based on review of
the claims folder is not necessary to decide the claim. See
38 C.F.R. § 3.159 (c)(4) (2005). As service and post-service
medical records provide no basis to grant these claims, and
provide evidence against the claims, the Board finds no basis
for a VA opinion to be obtained.
ORDER
Service connection for myopia and presbyopia, intestinal
ankylostomiasis, and seborrheic dermatitis for the purposes
of accrued benefits is denied.
Claims for pulmonary tuberculosis, malaria, and schizophrenia
are not reopened.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs